0120142540
03-31-2016
Randee D.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Randee D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120142540
Hearing No. 410-2013-00149X
Agency No. 4K-300-0134-11
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts Complainant's appeal from the Agency's June 2, 2014 final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. For the reasons stated below the Agency's final decision (FAD) which found that Complainant did not demonstrate that she was subjected to discrimination or harassment is AFFIRMED.
ISSUE PRESENTED
The issue presented in this case is whether Complainant was subjected to discrimination based on age, reprisal or physical disability and/or was subjected to harassment when her supervisors (S1) and (S2) subjected Complainant to various work place incidents.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Full-time Sales and Service Distribution Associate at the Wesley Chapel Station in Decatur, Georgia. On December 5, 2011, Complainant filed a formal complaint alleging that the Agency discriminated against her on the bases of disability (shoulder torn rotator cuff, back, neck, treated breast cancer), age (49), and reprisal for prior protected EEO when:
1) On or around June 8, 2011, she was told to schedule her therapy on her own time;
2) On or around June 18, 2011, Complainant's supervisor (S1) harassed her during her break times and prevented her from doing her bid job;
3) On June 18, 2011, she was issued a Letter of Warning (LOW); and
4) On August 10, 2011, S1 stated she would not accept her medical documentation.
On August 27, 2012, Complainant's complaint was amended to include the following issue: Discriminatory harassment based on age (49), disability (Shoulder, treated Cancer), and reprisal (prior EEO Activity) when: 5) On August 2, 2012, she was not allowed to perform the principle duties of her assignment.
Following an investigation by the Agency, Complainant requested a hearing before an Equal Employment Opportunity Commission's Administrative Judge (AJ) but subsequently withdrew her request; as such a FAD was issued. The FAD found that the Agency articulated legitimate, nondiscriminatory reasons for its actions, namely, that with respect to claim no. 1, S1 denied telling Complainant to schedule therapy on her own time but indicated that even if she had said such a thing it had nothing to do with discrimination but had to do with getting the work done. With regard to claim no. 2, S1 explained that she questioned Complainant about her break time because S1 noticed that Complainant had not returned from her break after she paged her twice and Complainant did not respond. S1 maintains that she did not recall preventing Complainant from doing her bid job but states that the work was not enough to fill a full eight hour day. Nevertheless, S1 stated that a manager was permitted to place employees wherever they were needed and it was possible that Complainant was needed at the window. Further, S1 explained that Complainant was issued a LOW (claim no. 3) because she failed to follow instructions. Complainant was instructed to work mandatory overtime and she refused.
Regarding claim no. 4, S1 indicated that after Complainant worked 4.23 hours she indicated that she was not feeling well and left for the day. She told Complainant to submit documentation to support her early departure as she required of all of her employees when they reported to work and then left early due to illness. Complainant returned to work but did not bring the documentation so she told Complainant that she would not be paid for the time she was out of work. Complainant ultimately submitted the documentation to someone other than S1. Finally, with respect to claim no. 5, wherein Complainant was asked to work Distribution instead of her regular Registry Clerk duties, S2 explained that Complainant was asked to perform distribution duties because additional help was needed in that area as the volume was heavy. S2 maintained that she assigned people to more crucial areas that needed help. S2 indicated that once Complainant indicated that the distribution duties aggravated an injury to her shoulder she was asked to submit medical documentation and when Complainant indicated that she had submitted documentation a year earlier but that no one could locate it, S2 instructed Complainant to provide updated medical information. On August 21, 2012, Complainant submitted documentation which indicated that she had restrictions of no overhead work and no lifting, pushing or pulling over fifteen (15) to twenty (20) pounds. The documentation did not indicate however the duration of the restrictions.
Management maintained that, prior to August 21, 2012, it was not aware that Complainant was impaired. Moreover, management maintained that Complainant was not subjected to harassment as the incidents complained of were all work related and were not severe or pervasive enough to establish a hostile work environment.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that with regard to claim no. 1, she had given S2 her therapy schedule and informed her of the reason for the therapy. Complainant maintains that together they agreed to a suitable time for Complainant to receive physical therapy. Therefore, Complainant thought it discriminatory when S1 asked her why she had not scheduled her physical therapy on her day off or before/after. Complainant asserts that the omission of the details with S2 and S1's convenient laps in memory shows a non-legitimate discriminatory reason for her action.
Regarding claim no. 2, Complainant maintains that S1 showed favoritism towards the carriers and another clerk by allowing them to leave the building to get food and then coming back and extending their break in order to eat it as well. Complainant maintains that she had previously been allowed by the Office Manager to take both of her breaks together because she was required to close out the back office computer and then prepare and file reports before the end of her tour. Complainant asserts that the Agency showed pretext for discrimination by watching her more closely than the other employees and attacking her about her break in a hostile manner thus creating a hostile work environment. Complainant also contends that management's explanation for why she was not allowed to work in her primary assignment is false. Complainant contends that understaffing was not a legitimate reason to violate her protected bid position. In fact, Complainant maintains that there was no understaffing because in 2010, the Agency excised six employees because the Decatur location was overstaffed. Complainant asserts that S1 misused the Bargaining Agreement to move her to whatever position that she wanted.
With regard to claim no. 3, the Letter of Warning, Complainant contends that S1 falsified documentation to create a legitimate non-discriminatory reason for the issuance of a LOW. Complainant maintains that S1's lapse of memory is very convenient. Complainant contends that the facts of this issue were so unclear that the LOW was reduced to a discussion. Complainant contends that S1 was wrong in ordering her to work overtime as there are procedures to be followed when overtime is required.
Regarding claim no. 4, Complainant maintains that there was no reason why S1 should have not accepted her medical documentation. Complainant indicates that the file did not note that S1 was removed from the work location because of her hostility toward Complainant. With regard to claim no. 5, Complainant maintains that S1 did not allow her to perform the principle duties of her assignment. Complainant contends that it made no sense that S1 allowed another person to complete Complainant's duties knowing that Complainant was coming into the office by 8:30 a.m.
In response, the Agency maintains that while Complainant disagrees with the FAD's findings she did not demonstrate that the Agency's legitimate, nondiscriminatory reasons were pretext for discrimination. Likewise, the Agency asserts that the incidents complained of were not severe or pervasive enough to establish a hostile work environment.
ANALYSIS AND FINDINGS
After a review of the record in its entirety, including consideration of all statements submitted on appeal, it is the decision of the Equal Employment Opportunity Commission to affirm the Agency's final decision.
Assuming arguendo that Complainant established a prima facie case of discrimination as to all bases, we find that the Agency articulated legitimate, nondiscriminatory reasons for its actions, and Complainant has not established pretext. Specifically, we find that although Complainant may have been asked why she had not scheduled her therapy on her own time but the evidence nevertheless shows that she was not prevented from going to therapy during her scheduled times. With regard to being confronted about her break time, management explained that it was noticed that Complainant was missing after two calls were made to her with no response. And, with regard to being prevented from doing her bid job, management explained that there was not enough work for Complainant to complete therefore she was asked to perform other work. Complainant was issued a LOW because it was believed that she did not follow directions when she was instructed to work mandatory overtime. The LOW was ultimately reduced to a discussion. Complainant's medical documentation was not accepted because it gave no specific information regarding the duration of her restrictions, and Complainant's duties had been performed earlier in the morning because her assistance was needed elsewhere due to a heavy work load. We find that Complainant did not demonstrate that the stated reasons were pretext for discrimination. Our role is not to determine whether the CBA was violated or whether management exercised effective supervisory techniques. Complainant has offered no persuasive evidence that her alleged disabilities, age or prior EEO activity played a role in these matters. Further, with respect to Complainant's allegation that she was subjected to harassment, we find that the incidents complained of in this complaint were work related matters dealing with assignments and requests for medical documentation and were not severe or pervasive enough to establish a hostile work environment.
With respect to Complainant's contentions on appeal, while Complainant gives conclusory statements as to what she believes must by the motive behind management's actions we find that she has not provided any evidence which suggests that discriminatory animus was involved in the instant case. In fact, while the two management officials admit that they were aware that Complainant had had some type of accident outside of work they both maintained that they were not aware of Complainant's claim of disability until she provided medical documentation on August 21, 2012. We note, that after the submission of the medical documentation Complainant did not indicate that she was asked to work outside of her restrictions. We find that the preponderance of the evidence of record does not establish that discrimination and/or harassment occurred.
The Agency's FAD which found no discrimination and/or harassment is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. � 1614.604. The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. '"Agency'" or '"department'" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton
Carlton M. Hadden, Director
Office of Federal Operations
___3/31/16_______________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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